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[* 45] * The same conclusion is reached by stating in consecu

tive order a few familiar maxims of the law. The administration of public justice is referred to the courts. To perform this duty, the first requisite is to ascertain the facts, and the next to determine the law that is applicable. The constitution is the fundamental law of the State, in opposition to which any other law, or any direction or decree, must be inoperative and void. If, therefore, such other law, direction, or decree seems to be applicable to the facts, but on comparison with the fundamental law it is found to be in conflict, the court, in declaring what the law of the case is, must necessarily determine its invalidity, and thereby in effect annul it. The right and the power of the courts to do this are so plain, our principles, every officer remains answerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution simply sues the officer before the proper court as having unlawfully aggrieved him in the particular case. The court, bound to do justice to every one, is bound also to decide this case as a simple case of conflicting laws. The court does not decide directly upon the doings of the legislature. It simply decides for the case in hand, whether there actually are conflicting laws, and if 80 which is the higher law that demands obedience, when both may not be obeyed at the same time. As, however, this decision becomes the leading decision for all future cases of the same import, until, indeed, proper and legitimate authority should reverse it, the question of constitutionality is virtually decided, and it is decided in a natural, easy, legitimate, and safe manner, according to the principle of the supremacy of the law, and the dependence of justice. It is one of the most interesting and important evolutions of the government of law, and one of the greatest protections of the citizen. It may well be called a very jewel of Anglican liberty, and one of the best fruits of our political civilization.” Lieber, Civil Liberty and Self

Government. “ Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political intluence. Few laws can escape the searching analysis; for there are few which are not prejudicial to some private interest or other, and none which may not be brought before a court of justice by the choice of parties, or by the necessity of the case. But from the time that a judge has refused to apply any given law in a case, that law loses a portion of its moral sanction. The persons to whose interest it is prejudicial learn that means exist for evading its authority; and similar suits are multiplied until it becomes powerless. One of two alternatives must then be resorted to, - the people must alter the constitution, or the legislature must repeal the law.” De Tocqueville, Democracy in America, c. 6.

1 “It is idle to say that the authority of each branch of the government is defined and limited by the constitution, if there be not an independent power able and willing to enforce the limitations. Experience proves that the consti


and the duty is so generally - we may almost say uni- [* 46] versally — conceded, that we should not be justified in wearying the patience of the reader in quoting from the very numerous authorities upon the subject.1

tution is thoughtlessly but habitually violated; and the sacrifice of individual rights is too remotely connected with the objects and contests of the masses to attract their attention. From its very position it is apparent that the conservative power is lodged in the judiciary, which, in the exercise of its undoubted rights, is bound to meet any emergency; else causes would be decided, not only by the legislature, but sometimes without hearing or evidence.” Per Gibson, Ch. J., in De Chastellux v. Fairchild, 15 Penn. St. 18.

“Nor will this conclusion, to use the language of one of our most eminent jurists and statesmen, by any means suppose a superiority of the judicial to the legislative power. It will only be supposing that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that declared by the people in the constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental. Neither would we, in doing this, be understood as impugning the honest intentions, or sacred regard to justice, which we most cheerfully accord to the legislature. But to be above error is to possess an entire attribute of the Deity; and to spurn its correction, is to reduce to the same degraded level the most noble and the meanest of his works." Bates v. Kimball, 2 Chip. 77.

“Without the limitations and restraints usually found in written constitutions, the government could have no elements of permanence and durability; and the distribution of its powers and the vesting their exercise in separate departments would be an idle ceremony.” Brown, J., in People v. Draper, 15 N. Y. 558.

11 Kent, 500-507; Marbury v. Madison, 1 Cranch, 137 ; Webster on the Independence of the Judiciary, Works, Vol. III. p. 29. In this speech Mr. Webster has forcibly set forth the necessity of leaving with the courts the power to enforce constitutional restrictions. “ It cannot be denied,” says he, one great object of written constitutions is, to keep the departments of government as distinct as possible; and for this purpose to impose restraints designed to have that effect. And it is equally true that there is no department on which it is more necessary to impose restraints than upon the legislature. The tendency of things is almost always to augment the power of that department in its relation to the judiciary. The judiciary is composed of few persons, and those not such as mix habitually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform, and their conduct is often liable to be canvassed and censured where their reasons for it are not known or cannot be understood. The legislature holds the public purse. It fixes the compensation of all other departments; it applies as well as raises all revenue. It is a numerous body, and necessarily carries along with it a great force of public opinion. Its members are public men, in constant contact with one another and with their constit

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[* 47] * Conclusiveness of Judicial Decisions.

But a question which has arisen and been passed upon in ono case may arise again in another, or it may present itself under different circumstances for the decision of some other department or officer of the government. It therefore becomes of the highest

. importance to know whether a principle once authoritatively declared is to be regarded as conclusively settled for the guidance, not only of the court declaring it, but of all courts and all departments of the government; or whether, on the other hand, the decision settles the particular controversy only, so that a different decision may be possible; or, considering the diversity of human judgments, even probable, whenever in any new controversy other tribunals may be required to examine and decide upon the same question.

In some cases and for some purposes the conclusiveness of a judicial determination is, beyond question, final and absolute. A decision once made in a particular controversy, by the highest court empowered to pass upon it, is conclusive upon the parties to the litigation and their privies, and they are not allowed afterwards to revive the controversy in a new proceeding for the purpose of raising the same or any other questions. The matter in dispute has become res judicata ; a thing definitely settled by judicial

uents. It would seem to be plain enough that, without constitutional provisions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judiciary." The constitution being the supreme law, it follows, of course, that every act of the legislature contrary to that law must be void. But who shall decide this question ? Shall the legislature itself decide it? If so, then the constitution ceases to be a legal, and becomes only a moral restraint upon the legislature. If they, and they only, are to judge whether their acts be conformable to the constitution, then the constitution is admonitory or advisory only, not legally binding; because if the construction of it rests wholly with them, their discretion, in particular cases, may be in favor of very erroneous and dangerous constructions. Hence the courts of law, necessarily, when the case arises, must decide on the validity of particular acts.” “Without this check, no certain limitation could exist on the exercise of legislative power.” See also, as to the dangers of legislative encroachments, De Tocqueville, Democracy in America, c. 6; Story on Const. 4th ed. $ 532 and note. The legislature, though possessing a larger share of power, no more represents the sovereignty of the people than either of the other departments; it derives its authority from the same high source. Bailey v. Philadelphia, &c., Railroad Co., 4 Harr. 402; Whittington v. Polk, 1 H. & J. 244.

decision ; and the judgment of the court imports absolute verity. Whatever the question involved, - whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, — the rule of finality is the same.

. The controversy has been adjudged, and once finally passed upon is never to be renewed. It must frequently happen, therefore, that a question of constitutional law will be decided in a private litigation, and the parties to the controversy, and all others subsequently acquiring rights under them, in the subject-matter of the suit, will thereby become absolutely and for ever precluded from renewing the question in respect to the matter then involved. The rule of conclusiveness to this extent is one of the most inflexible principles * of the law; insomuch that even if it were sub- [* 48] sequently held by the courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto.2

* Duchess of Kingston's Case, 2 Smith's Lead. Cas. 424; Etheridge v. Osborn, 12 Wend. 399; Hayes v. Reese, 34 Barb. 151; Hyatt v. Bates, 35 Barb. 308; Harris v. Harris, 36 Barb. 88; Young v. Black, 7 Cranch, 567; Chapman v. Smith, 16 How. 114; Wales v. Lyon, 2 Mich. 276; Prentiss v. Holbrook, 2 Mich. 372; Van Kleek v. Eggleston, 7 Mich. 511; Newberry v. Trowbridge, 13 Mich. 278; Crandall v. James, 6 R. I. 144; Babcock v. Camp, 12 Ohio, n. s. 11; Warner v. Scott, 39 Penn. St. 274; Kerr v. Union Bank, 18 Md. 396; Eimer v. Richards, 25 Ill. 289; Wright v. Leclaire, 3 Iowa, 241 ; Whittaker v. Johnson County, 12 Iowa, 595; Peay v. Duncan, 20 Ark. 85; Madox v. Graham, 2 Met. (Ky.) 56; George v. Gillespie, 1 Greene (Iowa), 421 ; Clark v. Sammons, 12 Iowa, 368; Taylor v. Chambers, 1 Iowa, 124; Skelding v. Whitney, 3 Wend. 154; Hawkins v. Jones, 19 Ohio, N. 8. 22; Slade v. Slade, 58 Me. 157 ; Geary v. Simmons, 39 Cal. 224; Cannon v. Brame, 45 Ala. 262; Dwyer v. Goran, 29 Iowa, 126 ; Verner v. Carson, 66 Penn. St. 440; Aurora City v. West, 7 Wall. 82 ; Harris v. Colquit, 44 Geo. 663; Finney v. Boyd, 26 Wis. 366 ; Ram on Legal Judgment, c. 14. A judgment, however, is conclusive as an estoppel as to those facts without the existence and proof of which it could not have been rendered; and if it might have been given on any one of several grounds, it is conclusive between the parties as to neither of them. Lea v. Lea, 97 Mass. 493. And see Dickinson v. Hayes, 31 Conn. 417; Church v. Chapin, 35 Vt. 223; Packet Co. o. Sickles, 5 Wall. 580; Spencer v. Dearth, 43 Vt. 98.

2 McLean v. Hugarin, 13 Johns. 184; Morgan v. Plumb, 9 Wend. 287 ; Wilder v. Case, 16 Wend. 583; Baker v. Rand, 13 Barb. 152; Kelley v. Pike, 5 Cush. 484; Hart v. Jewett, 11 Iowa, 276; Colburn v. Woodworth, 31 Barb. 381; Newberry v. Trowbridge, 13 Mich. 278; Skildin v. Herrick, 3 Wend. 154; Brockway v. Kinney, 2 Johns. 210; Platner v. Best, 11 Johns. 530; Phillips v. Berick, 16 Johns. 136; Page v. Fowler, 37 Cal. 100.


But if important principles of constitutional law can be thus disposed of in suits involving only private rights, and when private individuals and their counsel alone are heard, it becomes of interest to know how far, if at all, other individuals and the public at large are affected by the decision. And here it will be discovered that quite a different rule prevails, and that a judicial decision has no such force of absolute conclusiveness as to other parties as it is allowed to possess between the parties to the litigation in which the decision has been made, and those who have succeeded to their rights.

A party is estopped by a judgment against him from disputing its correctness, so far as the point directly involved in the case was concerned, whether the reasons upon which it was based were sound or not, and even if no reasons were given therefor. And if the parties themselves are estopped, so also should be all those who, since the decision, claim to have acquired interests in the subject-matter of the judgment from or under the parties, as personal representatives, heirs-at-law, donees, or purchasers, and who are therefore considered in the law as privies. But if strangers who have no interest in that subject matter are to be in like manner concluded, because their controversies are supposed to involve the same question of law, we shall not only be forced into a series of endless inquiries, often resulting in little satisfaction, in order to ascertain whether the question is the same, but we shall also be met by the query, whether we are not concluding parties by decisions which others have obtained in fictitious controversies and by collusion, or suffered to pass without sufficient consideration and discussion, and which might have been given otherwise had other

parties had an opportunity of being heard. (* 49] * We have already seen that the force of a judgment

does not depend upon the reasons given therefor, or upon the circumstance that any were or were not given. If there were, they may have covered portions of the controversy only, or they may have had such reference to facts peculiar to that case, that in any other controversy, though somewhat similar in its facts, and apparently resembling it in its legal bearings, grave doubts might arise whether it ought to fall within the same general principle. If one judgment were absolutely to conclude the parties to any similar controversy, we ought at least to be able to look into the judicial mind, in order that we might ascertain of a surety that all

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